1 mars 2010

Counterfeiting and file sharing are different things

Commercial goods counterfeiting and non-commercial peer to peer file sharing are two different things. In its proposal to establish an IP Observatory, the EU Commission mixes them up as if they were the same. When the proposal was discussed in the European Parliament’s legal affairs committee JURI, this mix-up was criticized by several members from different party groups.

Even if you think that illegal file sharing is something bad that should society should try to reduce, pretending that it is the same thing as commercial goods counterfeiting is not a constructive way forward.

The European Digital Rights organization EDRI has prepared a one-page summary making this point. They have sent it to the members of the JURI committee, who will be voting on a report (called the ”Gallo report”) on the IP Observatory later this spring.

It is a good summary by EDRI, so I republish it here:

Gallo Report – Unauthorised filesharing and Counterfeiting are fundamentally different

Introduction

A trend has developed among certain policy-makers to refer always to “piracy and counterfeiting” when referring to counterfeiting. Whether this is deliberate or not, the effect will be to lead some people to believe that the two issues are the same and should be treated in the same way. This approach can only result in either the fight against counterfeiting being weakened or in citizens being treated in the same way as organised criminals.

Why unauthorised filesharing and counterfeiting are different

As the US government “stopfakes.gov” website points out, “counterfeiting” refers to fake goods while “piracy” refers to unauthorised reproduction of copyrighted material.

The impact of counterfeiting, particularly with regard to medicines, can be very serious and even lifethreatening. By contrast, there have been no known deaths as a direct result of unauthorised filesharing. Similarly, there are clear differences between an organised crime gang selling counterfeit medicines and a citizen sharing a music file without yet having the necessary authorisation.

It is also the case that counterfeiting can be used to defraud consumers, who believe that they are buying an authentic product. In the case of unauthorised filesharing, the consumer is choosing to share a file without yet having the appropriate authorisation – often, according to research by UK market research agency Demos, before obtaining a legitimate copy.

Finding a proportionate response to unauthorised filesharing

Some parts of industry and some politicians speak condescendingly about “educating” citizens to respect copyright. The issue is not “education” however, it is culture. According to the 2010 IFPI digital music report, there were only 50 licensed online music services in 2003 – leading a whole generation to become accustomed to finding other means of accessing the content that they wanted. European consumers are still blocked at every turn, being shown that content available to others is not available to them (“catch-up” TV services from neighbouring countries, is one of many examples).

The European Commission was therefore right when it started to shift the focus away from repression and towards removing the barriers to creative content online. The European Parliament was right when it:

Supported the rights of citizens in Amendment 138 of the Telecoms Package

Called on the European Commission to “ensure unimpeded access to online cultural content and to the diversity of cultural expressions” (Resolution 2007/2153/EC)

Called on Member States to “avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access” (Resolution 2007/2153/EC)

Thanks to insightful work of the European Parliament, the emphasis is moving towards getting legal content online, removing the barriers created by the current chaotic European licensing regimes and away from the repression that risks losing the respect of another generation.

This is the time to consolidate this work and support innovative ways of ensuring that the right content, in the right format is available at the right price for consumers rather than inventing ever-more repressive and ultimately counterproductive ways of attempting to enforce IPR.

In the interests of rebuilding the credibility of intellectual property law and in the interest of fighting counterfeiting, these two issues must be addressed differently and separately. We urge you to support amendments aimed at achieving this.